The petitioner was working as a Branch Manager of the 1st respondent Bank. Through Ext.P6 order of the 2nd respondent he was imposed with punishment of compulsory retirement from service based on a disciplinary action initiated against him by the Bank. By virtue of Ext.P9 his claim for payment of gratuity was also rejected since gratuity amount to the extent of Rs.4,28,760/- was forfeited. It is challenging Exts.P6 and P9, this writ petition is filed. 2. Learned counsel for the petitioner pointed out that, consequent to an interim order passed by this court on 12.10.2009, the petitioner had approached the competent authority under the Payment of Gratuity Act against the forfeiture of gratuity amount and got a favourable order. It is further submitted that challenge made against the said order by the Bank before the appellate authority was unsuccessful and ultimately the amount of gratuity was already disbursed to the petitioner. Hence the challenge against Ext.P9 no more survives for consideration.
3. The petitioner is challenging Ext.P6 order, through which punishment of compulsory retirement was imposed against him on various grounds. One of the main contention is that, almost all the loan amounts which are the subject matter of charges levelled against the petitioner had already been recovered by the Bank, as revealed from Ext.P10 reply submitted under the Right to Information Act. It is contended that since the Bank had not sustained any loss, the action initiated against the petitioner is liable to be recalled and he is liable to be reinstated in service. But on a perusal of Exts.P5 and P6 it is evident that the charges levelled against the petitioner was not with respect to any loss caused to the Bank. But the specific charges are :-
i) Failure to take all possible steps to ensure and protect the interest of the Bank.
ii) Failure to discharge his duties with utmost devotion and diligence.
iii) Failure to discharge his duties with utmost honesty and integrity.
iv) Acting otherwise than in his best judgment in performance of his official duties.
The disciplinary authority found that all the above said charges were proved against the petitioner in the domestic enquiry conducted. The disciplinary authority had concurred with findings of the enquiry authority in holding the petitioner as guilty of those charges. Hence contention regarding recovery of the loan amounts cannot be considered as a ground to set aside the order of disciplinary proceedings.
4. Another contention raised is that the charges levelled against the petitioner is too vague and unsustainable. But, on a perusal of Ext.P5 which contains the gist of charges and allegations it is evident that there are specific accusations which pertains to 37 loans sanctioned by the petitioner in his capacity as the Branch Manager. All the particulars and details of such loans are enumerated under the statement of allegations. Therefore the contention that the charges levelled against the petitioner are vague and lacking precision, cannot be countenanced.
5. Learned counsel for the petitioner raised vehement arguments to the effect that the finding of guilt arrived by the enquiry officer is not supported by any evidence either documentary or oral. Such a contention cannot be adjudicated in this proceedings under Article 226 of the Constitution of India. It is evident from Ext.P5 that 215 documents were marked from the side of the management as MEX1 to MEX215 and 59 document were marked from the defence side as DEX 1 to DEX 59. 3 persons were examined as witnesses on behalf of the management. This court under Article 226 is not sitting in appeal over the decision taken by the disciplinary authority.
The petitioner was issued with a show cause notice before imposing punishment and the disciplinary authority had considered his objections. If the enquiring authority had failed in properly appreciating the materials and evidences available it was for the petitioner to point out the same before the disciplinary authority. Further, if the petitioner was in any manner aggrieved by the decision of the disciplinary authority he could have resorted to remedy of appeal against the said order. At any rate a re-appreciation of evidence is beyond the scope of this writ petition.
6. In the counter affidavit filed by the respondents it is specifically contended that the petitioner has got an effective remedy by way of appeal as provided under regulation 17 of the Union Bank of India Officer Employees (Discipline & Appeal) Regulations 1976. Evidently the petitioner has not resorted to any such statutory remedy. It is stated in the writ petition that the petitioner has not challenged the imposition of punishment in time, because the respondents and other senior officials of the Bank made him to believe that as a result of the punishment he will only lose one month's salary and if he venture upon challenging the punishment it may cause him huge monitory loss. However, as observed above, this court is not supposed to have a re- appreciation of the entire evidence or re-evaluation of the factual aspects in order to arrive at a conclusion about correctness of the findings of guilt.
7. Having confronted with the above conclusions, learned counsel for the petitioner appealed to this court to take a lenient view in permitting the petitioner to approach the appellate authority. He had specifically pointed out that this court had admitted the writ petition as early as in the year 2009 and it was kept pending disposal till now. According to learned counsel for the petitioner, the petitioner was bonafidely prosecuting challenges against the order of punishment in this writ petition. Therefore it will be highly unjustifiable to deny him the opportunity to approach the appropriate authority on the basis of the delay. The prayer in this regard was stiffly opposed by learned Standing Counsel appearing on behalf of respondents. It is pointed out that Ext.P6 order was issued as early as in the year 2007. But the petitioner had chosen to file this writ petition only in the year 2009, that too when the amount of gratuity was directed to be forfeited. It is contended that the petitioner cannot be permitted to invoke statutory remedy, which he had failed to avail only due to sheer negligence.
8. Having considered the rival submissions, this court takes note of the fact that the writ petition remained admitted since 2009 onwards. It is also noticed that, subsequent to filing of this writ petition the Bank could able to recover considerable amounts outstanding in the loan accounts mentioned in the statement of allegations. Therefore it is necessary to afford an opportunity to the petitioner to bring out those facts for consideration of the appellate authority by challenging the punishment imposed, atleast to the extent of seeking modification in the quantum of punishment.
9. Under such circumstances, having considered the fact that the petitioner was bonafidedly prosecuting the challenge against the punishment before this court, it is only equitable to permit him to pursue the remedy of appeal, even though it is at a highly belated stage. Therefore this writ petition is disposed of by granting liberty to the petitioner to invoke the remedy of appeal against Ext.P6, as provided under Regulation 17 of the Union Bank of India Officer Employees (Discipline and Appeal) Regulations 1976. If the petitioner submits any such appeal before the competent authority, within 2 weeks from the date of receipt of a copy of this judgment, the same shall be considered by the appellate authority as if it is the appeal filed within the time limit stipulated.
10. Such appeal if any filed shall be disposed of on merits, after affording opportunity of hearing to the petitioner, untrammelled by any of the observations contained hereinabove, at the earliest possible.
C.K.ABDUL REHIM, JUDGE.
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